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Amending a modification application – NSW Government’s swift response to gap exposed in AQC Dartbrook judgment

15 July 2021

#Planning, Environment & Sustainability, #Government

Amending a modification application – NSW Government’s swift response to gap exposed in AQC Dartbrook judgment

The Environmental Planning and Assessment Amendment (Modifications) Regulation 2021 (Amendment Regulation) came into effect on 14 July 2021, allowing amendments to modification applications. The Amendment Regulation follows two recent judgments that found that there was no power to amend a modification application.

No power to amend modification applications – the decisions in AQC Dartbrook and Duke Developments

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (AQC Dartbrook) involved an appeal against a refusal to a modification application to a development consent for a coal mine. The Court of Appeal had to consider whether a judge of the Land and Environment Court (LEC) had made an error in allowing a third party to be joined to the appeal.

The third party sought to join the proceedings after the parties to the proceedings had reached a conciliated agreement on the terms of a decision that they would ask the Court to make that would be acceptable to the parties. Conciliated agreements are provided for under section 34(3) of the Land and Environment Court Act 1979 (NSW). The terms of the conciliated agreement included an order to allow the applicant leave to make minor amendments to its application to modify the consent.

While the Court of Appeal found that an error had been made in allowing the third party to be joined, Preston CJ, who sat in the Court of Appeal in this matter, made a number of comments on whether the LEC had the power to make orders that would allow amendments to a modification application.

His Honour commented that there is no express or implied authority in the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that allows a proponent to amend its application to modify a development consent or approval.

The situation for modification applications was unlike the situation for development applications (DA), since clause 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) expressly allows amendments to a DA.

The consequence of Preston CJ’s comments meant that an applicant wanting to amend their modification application would need to withdraw the original application and resubmit a new one (see paragraph [235] of AQC Dartbrook).

While the comments from Preston CJ were not central to the decision regarding joinder, they highlighted a potential gap in the Court’s power to deal with notices of motion seeking the Court’s leave to amend modification applications on appeal in Class 1 of the LEC’s jurisdiction.

However, the issue was central in Duke Developments Australia 4 Pty Limited v Sutherland Shire Council [2021] NSWLEC 69 (Duke Developments), where a formal motion to amend a modification application was considered in light of Preston CJ’s comments in AQC Dartbrook. Robson J found that Preston CJ’s comments were persuasive and held that there was no express provision allowing a consent authority to amend a modification application.

The practical outcome of this decision was that if an applicant wished to vary a modification application, they would need to withdraw the application, discontinue any appeal proceedings, and submit a new modification application. Alternatively, the parties could potentially reach a conciliated agreement that proposed conditions to modify the development, providing the Court considered these conditions valid.

Swift action from the NSW Government

The Amendment Regulation, which commenced on 14 July 2021, addresses the comments in AQC Dartbrook and the judgment in Duke Developments by creating a new regulation (clause 121B) that allows a modification application to be amended, similarly to clause 55 for amending development applications.

The balance of the Amendment Regulation seeks to incorporate other clauses that were previously only expressly provided for in relation to development applications. These new clauses include:

  • Clause 121A, which provides that a consent authority may request additional information on a modification application from the applicant (equivalent to clause 54 of the EPA Regulation in relation to development applications)
  • Clause 122B, which provides for how the deemed refusal period should be calculated for a modification application (equivalent to clause 107 and clause 109 of the EPA Regulation in relation to development applications)
  • Clause 196B, which provides for the amendment of State significant infrastructure modification applications (equivalent to clause 192(2) of the EPA Regulation in relation to State Significant Infrastructure development applications).

Conclusions

The introduction of the express statutory power to amend a modification application directly addresses the problem first identified in AQC Dartbrook and then brought home in Duke Developments.

The decision in AQC Dartmouth was handed down on 3 June 2021 and the Amending Regulation commenced on 14 July 2021. The NSW Government deserves praise for its swift response.

Practitioners will be mightily relieved that such power now exists. The catch is that we now have to be more cautious in calculating deemed refusal periods for modification applications.

Developers and their advisors will need to be very careful in calculating whether a deemed refusal period for an appeal on a modification application has been reached. If not, an appeal could be incorrectly brought before the right to appeal has arisen.

Authors: Peter Holt & Katharine Huxley

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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